IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE BELLUNKE A.S. MISCELLANEOUS FIRST APPEAL NO.1378 OF 2017 (MV-D) BETWEEN:
THE CLAIM MANAGER SHRIRAM GENERAL INSURANCE COMPANY LIMITED, NO.5, II FLOOR, MONARCH CHAMBERS, INFANTRY ROAD, BANGALORE – 560 001, BY SHRIRAM GENERAL INSURANCE CO. LTD. 5/4, 3RD CROSS, S.V. ARCADE, OPP: BANNERAGHATTA MAIN ROAD, II M.B. POST, BANGALORE – 560 076, BY ITS MANAGER.
(BY SRI O. MAHESH, ADVOCATE) AND:
1. PUSHPA AGED 23 YEARS, W/O. LATE N. RAMESH ALIAS YARRAPPA.
2. MASTER KARTHIK MINOR, AGED 4 YEARS, S/O. LATE N. RAMESH ALIAS YARRAPPA.
... APPELLANT 3. NAGAPPA AGED 48 YEARS, S/O. LATE VENKATAPPA.
4. SHANTHAMMA AGED 43 YEARS, W/O. NAGAPPA.
RESPONDENT NO.2 IS MINOR, REPRESENTED BY HIS NATURAL GUARDIAN, RESPONDENT NO.1.
RESPONDENT NOS.1 TO 4 ARE RESIDING AT SHETTIKAL VILLAGE, MULBAGAL TALUK – 563 131.
5. C. NARAYANASWAMY MAJOR, S/O. MARAPPA, RESIDING AT NO.46, LINGAPURA VILLAGE, TAVAREKERE POST, HOSAKOTE TALUK – 563 112, BANGALORE RURAL DISTRICT.
... RESPONDENTS (BY SRI N. GOPALA KRISHNA, ADVOCATE, FOR R-1 TO 4; R-5: SERVICE OF NOTICE HELD SUFFICIENT VIDE ORDER DATED 27-5-2019) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 24-10-2016 PASSED IN M.V.C. NO.400 OF 2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T., KOLAR, (ITINERATING AT MULBAGAL), AWARDING COMPENSATION OF RS.13,86,000/- FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T This appeal is filed by appellant-insurance company against the judgment and award dated 24-10-2016 passed in M.V.C. No.400 of 2013 by the II Additional Senior Civil Judge and Motor Accident Claims Tribunal at Kolar (hereinafter referred to as ‘Tribunal’, for the sake of convenience) challenging the findings of the Tribunal on the point of rash and negligent parking of the offending vehicle by its driver and also on the quantum of compensation awarded by the Tribunal, particularly, adopting future prospects at 50% instead of 40%.
2. The brief facts of the case are that, on 20-7-2012, N. Ramesh alias Yarrappa was going towards Kolar from Thambihalli by riding a Hero Honda Splendor motorcycle bearing Registration No.KA-07/K-449 along with the petitioner in M.V.C. No.399 of 2013. When they reached near Belaganahalli Milk Diary Bridge on Mulbagal Kolar National Highway-4, a lorry bearing Registration No.KA-43/7008 was parked on the tar portion of left side road by its driver negligently without any indication facing towards Kolar. In spite of due care and caution taken by the rider of the motorcycle, he could not notice the lorry that was parked due to heavy vehicles coming from opposite direction with high beam lights and as a result, N. Ramesh alias Yarrappa (the deceased) dashed against the stationed lorry and sustained grievous injuries and succumbed to the same on the spot and the pillion rider also sustained grievous injuries. Therefore, it was contended that the accident occurred due to careless and negligent parking of the lorry by its driver. Therefore, the injured-pillion rider and the legal heirs of N. Ramesh alias Yarrappa filed M.V.C. No.399 of 2013 and M.V.C. No.400 of 2013 respectively before the Tribunal.
3. In pursuance of the notice issued by the Tribunal, respondent Nos.1 and 2 appeared through their counsel and filed separate statement of objections. Respondent No.1 contended that the offending vehicle is insured with respondent No.2 and the same was parked on extreme left side of the road by taking much care with indications. The deceased had no license to ride his motorcycle and he himself is responsible for the accident. The deceased drove the motorcycle at a high speed and dashed against the parked lorry. But the petitioners by colluding with the Police have created a false story against the driver of the lorry. It is further contended that the liability, if any, to be satisfied by respondent No.2- insurance company.
4. Respondent No.2-insurance company contended that the vehicle in question was insured with them and the insurance policy was in force. The driver of the lorry and rider of the motorcycle did not possess valid and effecting driving license to drive their vehicles at the time of the accident. The accident has occurred on account of rash and negligent riding of the motorcycle by the deceased himself and the legal heirs of the deceased have created a false case. Hence, the learned counsel prayed for dismissal of the claim petitions.
5. Based on the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioners prove that the accident occurred on 20.07.2012 at 11.30 p.m. near Belaganahalli Milk diary bridge on Mulbagal Kolar NH-4 road, Kolar Taluk is due to rash and negligent parking of Lorry bearing No.KA-43-7008 by its driver due to which N. Ramesh alias Yarrappa has sustained grievous injuries and died at the spot?
ii. Whether the respondent No.2 proves that the driver of Lorry had no valid and effective driving license to drive particular type of vehicle?
iii. Whether the petitioners are entitled for compensation? If so, to what extent and from whom?
iv. What order or award?
6. After holding the trial, the Tribunal answered issue No.1 in the affirmative, issue No.2 in the negative, issue No.3 partly in the affirmative and consequently, the impugned award came to be passed in both the claim petitions. The petitioners in M.V.C No.400 of 2013 have been awarded compensation of Rs.13,86,000/- on all the heads. The said judgment and award has been challenged by the appellant-insurance company on the following grounds:
The Tribunal has failed to notice the provisions of Section 134(c) and Section 158(6) of the Motor Vehicles Act and the insurer was kept in darkness about the accident in question. The Tribunal has not considered negligence on the part of the deceased, who was admittedly riding the motorcycle at 11:30 p.m. The Tribunal ought to have seen that Ex.P.2-compaint in respect of alleged accident in question lodged by one T.K. Nagaraj and Ex.P.3-spot panchanama was stated to have been drawn in presence of said eyewitness and the claimants did not choose to examine the independent eyewitness. Ex.P.4-spot sketch would go to show that the road, where the accident occurred, was of two lane traffic road bifurcated by a divider, which was a National Highway. There was sufficient place even on the right side of the road as well as on the left side of the road and that the deceased could not have missed to sight the parked lorry in head light beam of his motorcycle. The Tribunal grossly erred in awarding compensation of Rs.12,96,000/- under the head of ‘loss of dependency’. The deceased was a self employed person. Therefore, 40% of future prospects would have been taken by the Tribunal instead of 50%. Hence, the appellant has prayed for allowing the appeal.
7. Learned counsel for the appellant reiterated the same grounds during the course of his arguments.
8. On the basis of the abovesaid pleadings, the following points would arise for consideration:
i. Whether the appellant proves that the finding of the Tribunal that the accident was on account of rash and negligent on the part of the driver of the lorry, which was a parked vehicle is erroneous in law, facts and evidence on record?
ii. Whether the Tribunal erred in adopting 50% of future prospects on the income of the deceased is erroneous in law?
I answer point No.1 in the negative and point No.2 in the affirmative.
9. At the outset, the ruling of the Division Bench consisting of Hon’ble Mrs. Justice B.V. Nagarathna and myself of this Court in M.F.A. No.24179 of 2012 and connected matters decided on 28-3-2019, in my opinion, is aptly applicable to the present case with all force, as the manner of the accident including the time of the accident are almost similar.
10. In the abovesaid case, the lorry in question was parked on the Highway at night. The car in which the claimants were traveling and the driver of the car could not see the parked lorry and suddenly dashed to the hind portion of the said lorry. Due to the said impact, two persons died on the spot and other in-mates of the car sustained grievous injuries. In the said case, the Division Bench has examined with regard to strict liability casted on the driver of the lorry, who parked the vehicle on the road, particularly, in a place where the vehicle was not supposed to be parked.
11. The relevant portion of the said judgment reads as under:
“94. Section 122 of the Motor Vehicles Act, 1988 deals with leaving vehicles in dangerous position. It states that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to be abandoned or to remain at rest on any public place in such a position or in such a condition or in such circumstances as to cause or likely to cause danger, obstruction or undue inconvenience to other users of the public place or to the passengers. The owner of the vehicle has the right to drive the vehicle on the road and also the right to park the vehicle, but the parking of the vehicle cannot cause any danger or obstruction to other passers-by or passengers. This is a restriction on the road to park the vehicle. The aforesaid restriction on the road to park a vehicle is a reasonable restriction and emanates from a duty to take care. In Kumari Jyothi & Others vs. Mohd. Usman Ali & Others, [ILR 2002 KAR 893] (Kumari Jyothi), a Co- ordinate Bench of this Court found that the lorry in the said case was parked in the middle of NH9 with a full load of sugarcane with no signs or indicators with regard to parking of the lorry on the road; that, normally, when any vehicle had to be parked on account of break down, at least some stones would be kept around the vehicle to give some signal or warning to others. In the said case, that was not done and that there were also well grown trees and it was difficult to see the parked lorry. Referring to Section 122 of the Act, the Division Bench held that the driver of the parked lorry was alone to be blamed as he had parked the lorry in the middle of the road without any sign or indications for the other road users. That the Tribunal therein was not justified in placing the blame to an extent of 50% each on the driver of the lorry and the motorcyclist and that the driver of the lorry was solely negligent.
95. Reference could also be made to the judgment of the Gujarat High Court in Premlata Nilamchand Sharma vs. Hirabhai Ranchhodbhai Patel, [1983 ACJ 290] and the judgment of the Delhi High Court in Pushpa Rani Chopra vs. Anokha Singh, [1975 ACJ 396], wherein it has been held that where the place was dark and the vehicle was parked without any sign or indication to warn other road users, negligence is on the driver of the parked vehicle and not the driver of any vehicle which dashes into such parked vehicle.
96. Similarly, in the case of New India Assurance Co. Ltd. vs. Asha Prasad & others, [2011 ACJ 2641], another Co- ordinate Bench of this Court has held that the driver of the truck had parked the vehicle without giving any indication such as parking light as signal and the accident occurred around 1.30 a.m. At that time, the place was completely dark as there was no street light. Further, from the perusal of the recitals of the mahazar or panchnama therein, it was clear that the deceased had tried his best to avoid the accident by applying brakes which was supported by the tyre marks found on the road to the extent of 50 ft. and inspite of it, he could not avoid the collision and as a result he rammed his car against the truck. In the said case, the Tribunal, on the basis of the fact that there were brake marks on the road, had apportioned negligence to an extent of 25% on the driver of the car and 75% on the driver of the offending vehicle (truck), which was affirmed by this Court, but in the aforesaid judgment, there is no reference to the earlier judgment of the Division Bench of this Court in the case of Kumari Jyothi.
97. In the context of a highway, persons traveling on a highway could proceed at a faster pace than in a city or town unless there is a traffic restriction or other obstruction to slow down. Hence, any vehicle, which is parked on the highway without any sign or indication with regard to its parking, must take care regarding the parking of the vehicle so that it does not cause any obstruction to the other passengers on the highway. In the case of Nirmal Bhutani & others vs. Haryana State & another, [AIR 1983 Punjab and Haryana 188: 1983 ACJ 640], where a road roller was parked on the road without any sign or indication with regard to its standing there and the place was particularly dark, it was held that the road roller standing on the road in such a manner was a grave and unexpected hazard for road users and it constituted a breach of duty of care which was owed by the driver of the road roller to other road users. It was held that the accident was caused due to negligence of the driver of the road roller in leaving it parked unmarked on the main highway. It was further held that where a motor vehicle is left parked on a highway in such a manner that it constitutes a hazard or danger to the road users, the onus must be held to be upon one who seeks to avoid liability arising from the accident with such vehicle, to establish that despite such parking of the motor vehicle, the accident took place due to a fault or negligence of the other party or such other party could have avoided the accident by reasonable care and caution.
98. Further, in the case of Shashikala Swain & others vs. Md. Khairuddin & another, [AIR 2000 Orissa 52: 2001 ACJ 1638], reference has been made to Section 122 of the Act and the duty cast on the driver of a stationary vehicle on a public place so as not to cause any danger, obstruction or undue inconvenience to the users of public place and also to the other passengers.
99. Further, under Section 126 of the Act, no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver’s seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. Section 127 has been amended with effect from 14/11/1994, wherein it states that where any motor vehicle is abandoned or left unattended, on a public place for ten hours or more or is parked in a place where parking is legally prohibited, its removal by a towing service or its immobilization by any means including wheel clamping may be authorised by a police officer in uniform having jurisdiction. Sub- section (2) of Section 127 states that where an abandoned, unattended, wrecked, burnt or partially dismantled vehicle is creating a traffic hazard, because of its position in relation to the public place, or its physical appearance is causing impediment to the traffic, its immediate removal from the public place by a towing service may be authorised by a police officer having jurisdiction. Sub- section (3) of Section 127 states that where a vehicle is authorised to be removed under sub-section (1) or sub-section (2) by a police officer, the owner of the vehicle shall be responsible for all towing costs, besides any other penalty. Section 127 of the Act is an enabling provision which empowers a police officer to tow away an abandoned, unattended, wrecked, burnt or partially dismantled vehicle, which is creating a traffic hazard at the expense of the owner, but that does not imply absence of duty on the part of the owner and driver of the vehicle, which is left unattended in a public place. A duty is cast on the driver as well as the owner of such a vehicle to ensure that such a vehicle is towed away as immediately as practicable and not left abandoned or unattended, particularly on a highway where vehicles are permitted to move at a faster pace than on other roads. In the alternative, some other form of external lighting ought to have been provided so as to give an indication about the parked lorry, until a vehicle, which is stationed/parked due to a break down or if it has met with an accident is towed away, it is necessary that the said vehicle does not become dangerous to other vehicles. For that precautions, under Section 122 read with the relevant Rules have to be followed by the driver and owner of the stationed vehicle, particularly on a highway.
100. The display of lights of motor vehicles is generally regulated by statute. Under Rule 109 of Central Motor Vehicles Rules, 1989, every motor vehicle, other than motor cycles and three-wheeled invalid carriages shall be provided with one white or amber coloured parking light on each side in the front. In addition to the front lights, two red parking lights, one on each side in the rear shall be provided. The front and rear parking lights shall remain lit even when the vehicle is kept stationary on the road. The proviso states that rear lamps can be the same as the rear lamps referred to in sub-rule (2) of Rule 105. Sub-rule (2) of Rule 105 states that every motor vehicle, other than three-wheeler, shall also carry two lamps (hereinafter referred to as the rear lamp) showing to the rear a red light visible in the rear from a distance of one hundred and fifty-
five metres; lamp, which may be the rear lamp or some other device, illuminating with a white light the whole of the registration mark exhibited on the rear of the vehicle, including a construction equipment vehicle, so as to render it legible from a distance of fifteen metres to the rear. Sub-rule (5) of Rule 105 states that in the case of a transport vehicle, the rear light may be fixed at such level as may be necessary to illuminate the registration mark. In sub-rule (6) of Rule 105, it is stated that every heavy goods carriage, including trailers, shall be fitted with a red indicator lamp of size of thirty centimeters by ten centimeters on the extreme rear-most body cross-beam and in case of a vehicle not constructed with body in the rear, the indicator lamp shall be fitted near the right, rear light above the rear number plate. Under Rule 107, it is stated that every goods vehicle, including trailer and semi-trailer, other than three-wheelers and vehicles with overall width not exceeding 2.1 metres, shall be fitted with two white lights at the top right and left corners showing white light to the front and two red lights at the top right and showing red light to the rear. The lights shall remain lit when the vehicle is kept stationary on the road during night and at the time of poor visibility. Provided that in the case of goods carriage without a full body in the rear, provision for fitting of the top light at the rear shall not be necessary.
101. Revisiting the facts of this case, it is noted that on 12/11/2008, at about 8.00 p.m., the Santro car which was proceeding on NH17 dashed against the stationary lorry, which was parked on the highway towards the left side of the road. The car hit the lorry from behind. Having regard to the aforesaid mandatory requirements, it is noted in the sections of the Act as well as relevant Rules and also the judgments referred to above, it is held that the driver of the lorry was in breach of duty to take care and was thus negligent.
In the absence of any indication by way of lights to indicate that the container lorry was stationed on the left side of the road by covering a portion of the road, the accident had occurred. Secondly, the accident occurred at 8.00 p.m. in the month of November when it was dark on the National Highway. The driver of the Santro car was proceeding on the left side of the road of the highway and could not see the container lorry parked on the left side of the road as there were no lights indicating that the said vehicle had been parked. Therefore, there was negligence on the part of the lorry driver in parking the lorry on the highway without any light. Assuming for a moment that the lights of the lorry were non-functional on account of the fact that it had earlier met with an accident, then all efforts should have been made to remove/tow away the lorry at the earliest possible time. The same not having been done clearly give rise to an inference that the driver and owner of the lorry did not discharge their duty to take care and were therefore negligent in causing the accident.
102. No negligence can be attributed to the driver of the car as on a National Highway the vehicles would normally move at a greater speed than on an ordinary road or on a road in a city or a town. On account of there being no indication whatsoever that the container lorry was parked towards the left side of the road, the driver of the car who was also proceeding on the left side could not imagine or gauge or expect that there was a vehicle that was parked towards the left side of the road. In the absence of the driver of the car being aware about the parking of the lorry towards left side of the road and the car also proceeding towards the left side of the road, it hit the lorry from behind. Even if the car was proceeding at a moderate speed, the driver could not have avoided the stationed lorry which was unattended and without any light or indicator on so as to indicate to the drivers of the vehicles proceeding in the same direction that the lorry was parked to avoid hitting the lorry. In fact, in the instant case the brake marks on the road as noted in the panchnama would indicate that the driver of the vehicle has tried his best to avoid a collision with the lorry, but could not do so. Thus, total negligence was on the driver of the lorry to have left it unattended and without any parking lights on, which is in violation of the duty cast under the Act as well as in common law. Hence, there being a breach of duty to take care, it is held that the driver and owner of the lorry were totally negligent and committed a tortuous act in causing the accident and that there was no composite negligence nor contributory negligence on the part of the driver of the car. In the result, the driver, owner and insurer of the car are exonerated from their liability to satisfy the awards. Hence, point No.1 is answered in favour of the claimants and New India Assurance Co. Ltd., and against the driver/owner and insurer of the lorry.”
12. In view of the aforesaid decision of this Court, I find that the insurance company cannot contend that the rider of the motorcycle was negligent and responsible for the accident in question. Even admitting all the arguments advanced by the learned counsel for the appellant, I find that negligence cannot be casted on the rider of the motorcycle.
13. Now, coming to point No.2, it is fairly contended by the learned counsel for the appellant that the deceased was Mason by profession and not having any fixed income. He was aged 23 years, therefore, in the absence of fixed income, the Tribunal ought to have taken the future prospects at 40% instead of 50%.
14. In view of the dictum of the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, I find that the Tribunal committed an error in calculating the future prospects by taking 50% instead of 40%.
15. No doubt, the quantum of compensation is likely to be reduced. The difference of amount will be Rs.1,29,600/-. However, I find that the Tribunal has committed an error in awarding Rs.25,000/- towards ‘loss of consortium’ to petitioner No.2, Rs.40,000/- towards ‘loss of estate’ and Rs.25,000/- towards ‘transportation of dead body and funeral expenses’. As per the decision of the Hon’ble Supreme Court in the case of Pranay Sethi, these have to be modified. Petitioner No.2 is entitled for compensation of Rs.70,000/- on conventional heads, i.e. Rs.40,000/- towards ‘loss of consortium’, Rs.15,000/- towards ‘loss of estate’ and Rs.15,000/- towards ‘transportation of dead body and funeral expenses’. At the same time, petitioner No.3, being minor son of the deceased, and petitioner Nos.4 and 5, being parents of the deceased, are entitled for compensation of Rs.40,000/- each towards loss of parental consortium and filial consortium respectively. If that is added, it almost comes to nearer to the difference amount to be deducted. Therefore, having regard to this fact, I find that the quantum of compensation awarded under different heads need not be recalculated. Even if it is calculated, it comes to almost same. The gross amount awarded by the Tribunal does not call for any reduction or enhancement. Moreover, the claimants have not preferred any appeal. In the facts and circumstances of the case, point No.2 is answered in the affirmative.
Hence, for the aforesaid reasons, the appeal filed by the appellant-insurance company is dismissed.
16. Amount in deposit, if any, shall be transmitted to the Tribunal, forthwith.
17. Registry is directed to send back the record along with a copy of the judgment to the concerned Tribunal.
No costs.
(Sd/-) JUDGE kvk